On appeal from Superior Court, Law Division, Mercer County.
Matthews, Pressler and Petrella. The opinion of the court was delivered by Petrella, J.A.D.
This appeal presents the single issue of whether the trial court erred in holding that N.J.S.A. 52:27D-126, as amended by L. 1979, c. 394 § 1, effective February 6, 1980, requires that plaintiff be appointed plumbing subcode official in Hamilton Township.
Plaintiff instituted an action in lieu of prerogative writs after the municipality redesignated his position in 1977 from Chief Plumbing Inspector to Senior Plumbing Inspector and at the same time promoted one Henry White from Assistant Chief Plumbing Inspector to Senior Plumbing Inspector. All the plumbing inspector titles were Civil Service positions. Thereafter White was appointed the plumbing subcode official, a position authorized in the State Uniform Construction Code Act (N.J.S.A. 52:27D-119 to 141) (the act). On appeal to the Civil Service Commission (Commission) plaintiff obtained an order reinstating
him to his former position of Chief Plumbing Inspector with back pay on the basis that the municipality's alleged reasons for his demotion would have constituted good cause and hence, was required to be in accord with the procedures prescribed by Title 11 of the Revised Statutes and Civil Service rules. The Commission concluded that it did not have jurisdiction to determine the issue of the appointment as plumbing subcode official but deferred to the Commissioner of the Department of Community Affairs, who had authority to implement and enforce the act. By letter dated August 14, 1979 the Chief of the Bureau of Construction Code Enforcement in the Department of Community Affairs advised the mayor of defendant Hamilton Township that by virtue of plaintiff's reinstatement as Chief Plumbing Inspector, plaintiff was entitled to appointment as plumbing subcode official under the act. Defendant declined to so appoint plaintiff and this litigation ensued.
After these events had transpired N.J.S.A. 52:27D-126, which governs appointment of subcode officials, was amended by L. 1979, c. 394.
The trial judge found that as a result of the Commission's determination, plaintiff was the Chief Plumbing Inspector and White, as Assistant Chief Plumbing Inspector, was his subordinate on June 4, 1977. The original version of the statute was unclear as to who should have been appointed plumbing code official. Thus, he considered the legislative intent and concluded that the purpose of the amendment was not to alter the existing statute but to clarify tenure and other rights of officials covered by the code. He held that the "subcode official" was the person who, prior to the effective date of the original act, had subordinate responsibility to enforce the plumbing code and that the subcode official is thus "the next subordinate to the overall chief." Because plaintiff fit that description he was within the statute and entitled to the appointment. We agree and affirm.
N.J.S.A. 52:27D-126a has consistently provided that "the appointing authority of any municipality shall appoint a construction official and any necessary subcode officials to administer and enforce the code. . . ." (Emphasis supplied). A municipality has, however, the option to accept inspections regarding compliance with the code made by a state-approved inspection authority. Subsection b provided for appointment of a construction official and subcode officials and made provision for tenure and preservation of Civil Service rights.
However, reference to "construction officials" and "subcode officials" in § 126 b, as applied to officials in office prior to the act, created some confusion and ambiguity because those terms were not in general use under prior law where the references were to building inspectors, plumbing inspectors and electrical inspectors. The act attempted to provide for continuation of tenure without adequately correlating pre-code and post-code positions. This ambiguity in the original act resulted in Civil Service rulings adverse to the Legislature's intent as subsequently expressed in connection with L. 1979, c. 394. The original language of N.J.S.A. 52:27D-126 being ambiguous with respect to appointments of subcode officials, we are thus called upon to construe that language.
N.J.S.A. 52:27D-126 governs appointment of subcode officials and was amended by L. 1979, c. 394 to be effective February 6, 1980. It now provides in pertinent part:
a. The appointing authority of any municipality shall appoint a construction official and any necessary subcode officials to administer and enforce the code and a construction board of appeals to hear and decide appeals from decisions made by said construction official and subcode officials, in the administration and enforcement of the code. Nothing herein, however, shall prevent a municipality from accepting inspections as to compliance with ...